Response to 2017 prison riot cost state police more than $184,000 in overtime

DOVER — In response to a Freedom of Information Act request, the Division of State Police reported that they’ve spent $184,694 in overtime pay in connection with the emergency response and ensuing investigation spurred by the Feb. 1, 2017, inmate uprising at James T. Vaughn Correctional Center.

Although a full accounting of the emergency response and subsequent criminal investigation is what was requested, the state police claim to be unable to “quantify how many regular duty hours were expended in support of this incident.”

A letter signed by state police superintendent Col. Nathaniel McQueen Jr., states:

“The Delaware State Police has determined that it cannot separate out expenses for the incident and investigation in your request from the general amount of operations and expenses below.”

The only costs the state police were capable of supply were the overtime costs it incurred on Feb. 1-2, overtime costs incurred during a criminal investigation that took nearly 8 months to produce convictions (and remains “ongoing”) and helicopter operational costs related to the incident:

• On Feb. 1 overtime expenses: $104,578

• Feb. 2 overtime expenses: $3,939

• Feb. 1-2 shift coverage overtime generated from incident: $6,467

All applicable overtime expenses associated with the criminal investigation:

• Feb. 2: $15,725

• Feb. 3, 2017 through Jan. 29, 2018: $53,985

Helicopter operational costs:

1.6 hours of flight time: $1,259

It’s unclear what the full cost of the incident was to the state police and how many “duty hours” were used to assist with the incident and the level of burden it placed on the agency’s budget.

However, Gov. John Carney’s budget proposal for the state police is up almost $2.5 millions from last financial year (FY). In FY2017, the agency was allocated $114.8 million followed by $115.7 million in FY2018 — the Gov.’s FY2019 proposal asks for $118.1 million.

Costs continue to grow

The expense report from the state police is only the most recent addition in the ever-growing list of costs the taxpayer has had to shoulder in connection with the inmate uprising.

The immediate costs of the incident were obvious: Correctional officer Lt. Steven Floyd was killed and six other hostages were gravely injured or otherwise traumatized. The known financial costs are currently somewhere over $30 million and growing.

The most clearly enumerated expenses so far were the $7.55 million settlement of the lawsuit brought against the state by Lt. Floyd’s family and survivors of the incident and the alleged $21.6 million “historic investment” in the Department of Correction in the wake of the incident. The “investment,” often touted by the Gov.’s office, went primarily into raising correctional officers salaries to increase recruitment and retention efforts and toward purchasing solely needed equipment and cameras.

Office of Management and Budget (OMB) Director of policy and external affairs Bert Scoglietti confirmed in early January that the actual state payout to settle the lawsuit will be larger than $7.55 million — and that amount already is thought to be the largest state-paid settlement in Delaware’s 230-year history.

As part of the settlement terms, the state agreed to pay several survivors’ limited future salaries and medical bills not included in the payout sum.

Lt. Floyd’s widow will continue to receive her health benefits, a survivor’s pension and a “line of duty death benefit” — between $150,000 to $200,000 depending on when she filed a claim.

“I don’t have an estimate yet what the total cost to the state will be,” Mr. Scoglietti said in January.

Emptied state legal fund?

Although unconfirmed by the OMB, the settlement appears to have more than emptied the state’s entire legal contingency fund.

When the state loses a civil suit or settles a case, it pays the plaintiff(s) out of a fund specifically used for lawsuits involving state agencies and outside legal counsel.

The state’s legal contingency fund is financed annually through the budget process.

When the state settled the Vaughn lawsuit, Mr. Scoglietti said the money would be drawn from two separate funds: “$5.1 million will come from the workers compensation fund for state employees,” he said. “The remaining $2.45 million will be paid from current and prior year funds which are in the OMB legal contingency fund.”

In late December before the $2.45 million was drawn, Mr. Scoglietti noted that the balance in the contingency fund was just over $2,069,474. That payout would hypothetically leave the fund with a balance of negative $450,000.

In response to a Freedom of Information Act (FOIA) request filed earlier in 2017, the OMB noted that the legal contingency fund had about $4.2 million in it at the start of FY2018, which began July 1, 2017.

The OMB has ignored repeated questions about whether the account is now empty.

Mr. Scoglietti has only said that the OMB has the ability to move money into the account mid-financial year from other accounts when needed.

“In general, the OMB director and controller general have the authority to transfer surplus funds as necessary during the course of a fiscal year to address deficits, should they arise,” he said this month.

Gov. Carney’s recently released budget recommends $1.07 million for legal fees in FY2019, which begins July 1.

The OMB has also ignored questions about the costs of providing outside legal counsel for the defendants of the Vaughn lawsuit.

Among these defendants were former governors Ruth Ann Minner and Jack Markell, along with DOC commissioner Perry Phelps and three former commissioners, and state budget director Michael Jackson and his predecessors.

Upcoming costs

Although the upcoming costs are the most uncertain, they will likely be considerable — namely, the expense associated with prosecuting the 18 inmates charged in the February riot and providing for their defense.

Delaware’s lead public defense attorney expects “hundreds, if not thousands of hours” will be spent representing the inmates.

In addition to attorney fees set at $90 per hour, the state will pay for other defense needs such as investigators and forensic experts, among other costs and rates to be determined.

According to Mr. O’Neill, “there is no case in recent memory” that included so many first-degree murder charges in a single indictment.

The Office of Defense Services (ODS) briefed the Joint Finance Committee during a hearing last week on its expected future expenses.

“We do not know what the exact cost to represent all of the defendants will be, but we do know it will be expensive,” Mr. O’Neill said. “We are asking the state to provide us with an additional $600,000, on top of the contractual line for conflict attorneys included in the governor’s recommended budget, to cover not just the projected costs associated with the Vaughn case, but other multi-defendant cases as well.”

The governor’s recently announced budget calls for allocating $24.8 million to the office, an increase of $1.6 million from the current year.

“Worst-case scenario? The level of representation is deemed to be insignificant and we end up having to do them over again,” Mr. O’Neill told the budget-review committee this week.

The Department of Justice (DOJ) enlisted approximately three prosecutors and “a handful of paralegals and administrative staff” to investigate the Vaughn matter and bring an indictment, spokeswoman Nicole Magnusson has said.

The DOJ said it handled several cases with large numbers of defendants in recent years stemming from gangs or criminal enterprises, some involving multiple murder charges.

Ms. Magnusson said that the prosecution isn’t beyond the DOJ’s ordinary operating scope.

“The prosecution of defendants associated with the death of Lt. Floyd is being handled by DOJ attorneys and staff as part of their job responsibilities, so there is no quantifiable added costs per case for staff time,” she said.

In the DOC’s effort to continue addressing its “systemic” ills, steeply increased costs are expected in their budget as well.

The DOC originally indicated the need for an 8 percent in its budget. Gov. Carney’s FY2019 budget suggests allocating $328.6 million to the DOC up from a $308.1 million allocation this FY.

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